Employer representative said he had no memory of 2012 bargaining
A $1-per-hour premium for head employees was not considered by an employer to be part of the overall wage rate, despite it being listed in the wage-rates section of the collective agreement.
Employees at an Alberta Suncor oilsands site known as Fort Hills, north of Fort McMurray, were not paid a head premium correctly, leading to a grievance by the union, Unite Here, Local 47.
Ian Robb, president of the union, said he entered into discussions with Ivor MacGregor, vice-president of Sodexo Canada (the employer), on July 6, 2012, about a new collective agreement. They worked from an existing collective agreement that covered workers at the Pioneer Camp site.
Also attending were Vanessa White, senior director of human relations, for the company and Joanne Moody, secretary-treasurer, for Unite Here.
Robb said the subject of how the head rate would be paid took place, but no firm decision was made. As he understood it, the premiums were added to the wage rate for workers acting in the head capacity.
As well, one hour of overtime pay would be added for employees working a shift as a head.
Robb further testified that night- and spilt-shift premiums were not added to the wage rates but they were listed under the premiums section of the agreement.
On Oct. 16, 2012, the collective agreement was signed by both parties and no further discussions about the head-premium issue were raised.
The union discovered the wage discrepancy shortly before filing the grievance in March 2015, according to Robb. He testified a steward brought up the issue which was then confirmed after Robb spoke with a manager.
The steward’s pay stub showed the $1-per-hour head rate was listed as a separate entry and it was shown as “Shft Lh,” which Robb testified was not something understood by the union, but rather the employer.
Moody, who took notes at the 2012 meeting and typed them up shortly thereafter, testified the discussion happened as Robb said and it was agreed by all parties present that the $1 per hour would be added to the wage rate.
If the sides had wanted the head rate to be added to the premiums section, it would have been included in article eight, which lists all the other premiums, said Moody, but instead it was included in appendix A, which lists all the wage rates.
MacGregor testified that he recalled little about the meeting other than he wanted to address the issue of overtime on Saturday and travel time. He said it was his understanding that the overtime added to the head rate would be forbidden under the agreement’s no-pyramiding provision, which were standard in all other agreements with Suncor.
When asked if White would be able to provide notes backing up his side of the story, MacGregor confirmed she was no longer with the employer and she wasn’t available to testify, despite being his partner.
MacGregor also said White’s notes were destroyed in a 2017 fire.
Suzanne Young, payroll manager Canada for Sodexo, testified the system didn’t allow for the overtime rate to be added directly, so a separate entry had to be made, thus explaining the “Shft Lh” designation.
The employer argued for estoppel and any possible payments should be limited to 14 days prior to the grievance’s filing. It also argued that the grievance should be dismissed due to the long delay of 19.5 months in filing.
Arbitrator David Tettensor allowed the grievance and ordered the employer to pay all appropriate rates, but only for one year. “I conclude that the proper interpretation of the collective agreement is that the one-dollar-an-hour premium for designated heads set out in appendix A is added to the wage rate and to be used in the calculation of overtime.”
The pay stub’s layout was decried and may have contributed to any confusion faced by employees, said the arbitrator.
“The earnings statements provided to employees here, in my view, are not as clear as they should be. There is no item that identifies the head premium as such. The item setting out the one dollar an hour is described as Shft Lh. It is not clear to where the one hour of overtime is set out," according to Tettensor.
Reference: Sodexo Canada and Unite Here, Local 47. David Tettensor — arbitrator. Julie Menton for the employer. David Mercer for the employee. Nov. 28, 2017. 2017 CarswellAlta 2614
